Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 152329

April 22, 2003

ALEJANDRO ROQUERO, petitioner,

vs.
PHILIPPINE AIRLINES, INC., respondent.
PUNO, J.:
Brought up on this Petition for Review is the decision of the Court of Appeals dismissing
Alejandro Roquero as an employee of the respondent Philippine Airlines, Inc.
Roquero, along with Rene Pabayo, were ground equipment mechanics of respondent
Philippine Airlines, Inc. (PAL for brevity). From the evidence on record, it appears that
Roquero and Pabayo were caught red-handed possessing and using Methampethamine
Hydrochloride or shabu in a raid conducted by PAL security officers and NARCOM
personnel.
The two alleged that they did not voluntarily indulge in the said act but were instigated by a
certain Jojie Alipato who was introduced to them by Joseph Ocul, Manager of the Airport
Maintenance Division of PAL. Pabayo alleged that Alipato often bragged about the drugs he
could smuggle inside the company premises and invited other employees to take the
prohibited drugs. Alipato was unsuccessful, until one day, he was able to persuade Pabayo
to join him in taking the drugs. They met Roquero along the way and he agreed to join
them. Inside the company premises, they locked the door and Alipato lost no time in
preparing the drugs to be used. When they started the procedure of taking the drugs, armed
men entered the room, arrested Roquero and Pabayo and seized the drugs and the
paraphernalia used.1 Roquero and Pabayo were subjected to a physical examination where
the results showed that they were positive of drugs. They were also brought to the security
office of PAL where they executed written confessions without the benefit of counsel. 2
On March 30, 1994, Roquero and Pabayo received a "notice of administrative charge" 3 for
violating the PAL Code of Discipline. They were required to answer the charges and were
placed under preventive suspension.
Roquero and Pabayo, in their "reply to notice of administrative charge," 4 assailed their arrest
and asserted that they were instigated by PAL to take the drugs. They argued that Alipato
was not really a trainee of PAL but was placed in the premises to instigate the commission
of the crime. They based their argument on the fact that Alipato was not arrested. Moreover,
Alipato has no record of employment with PAL.
In a Memorandum dated July 14, 1994, Roquero and Pabayo were dismissed by
PAL.5 Thus, they filed a case for illegal dismissal. 6

In the Labor Arbiter's decision, the dismissal of Roquero and Pabayo was upheld. The
Labor Arbiter found both parties at fault PAL for applying means to entice the
complainants into committing the infraction and the complainants for giving in to the
temptation and eventually indulging in the prohibited activity. Nonetheless, the Labor Arbiter
awarded separation pay and attorney's fees to the complainants. 7
While the case was on appeal with the National Labor Relations Commission (NLRC), the
complainants were acquitted by the Regional Trial Court (RTC) Branch 114, Pasay City, in
the criminal case which charged them with "conspiracy for possession and use of a
regulated drug in violation of Section 16, Article III of Republic Act 6425," on the ground of
instigation.
The NLRC ruled in favor of complainants as it likewise found PAL guilty of instigation. It
ordered reinstatement to their former positions but without backwages. 8 Complainants did
not appeal from the decision but filed a motion for a writ of execution of the order of
reinstatement. The Labor Arbiter granted the motion but PAL refused to execute the said
order on the ground that they have filed a Petition for Review before this Court. 9 In
accordance with the case of St. Martin Funeral Home vs. NLRC and Bienvenido
Aricayos,10 PAL's petition was referred to the Court of Appeals. 11
During the pendency of the case with the Court of Appeals, PAL, and Pabayo filed a Motion
to Withdraw/Dismiss the case with respect to Pabayo, after they voluntarily entered into a
compromise agreement.12 The motion was granted in a Resolution promulgated by the
Former Thirteenth Division of the Court of Appeals on January 29, 2002. 13
The Court of Appeals later reversed the decision of the NLRC and reinstated the decision of
the Labor Arbiter insofar as it upheld the dismissal of Roquero. However, it denied the
award of separation pay and attorney's fees to Roquero on the ground that one who has
been validly dismissed is not entitled to those benefits. 14
The motion for reconsideration by Roquero was denied. In this Petition for Review on
Certiorari under Rule 45, he raises the following issues:
1. Whether or not the instigated employee shall be solely responsible for an action
arising from the instigation perpetrated by the employer;
2. Can the executory nature of the decision, more so the reinstatement aspect of a
labor tribunal's order be halted by a petition having been filed in higher courts without
any restraining order or preliminary injunction having been ordered in the meantime?
3. Would the employer who refused to reinstate an employee despite a writ duly
issued be held liable to pay the salary of the subject employee from the time that he
was ordered reinstated up to the time that the reversed decision was handed down?
15

There is no question that petitioner Roquero is guilty of serious misconduct for possessing
and using shabu. He violated Chapter 2, Article VII, section 4 of the PAL Code of Discipline
which states:
"Any employee who, while on company premises or on duty, takes or is under the
influence of prohibited or controlled drugs, or hallucinogenic substances or narcotics
shall be dismissed."16
Serious misconduct is defined as "the transgression of some established and definite rule of
action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent
and not mere error in judgment."17 For serious misconduct to warrant the dismissal of an
employee, it (1) must be serious; (2) must relate to the performance of the employee's duty;
and (3) must show that the employee has become unit to continue working for the
employer.18
It is of public knowledge that drugs can damage the mental faculties of the user. Roquero
was tasked with the repair and maintenance of PAL's airplanes. He cannot discharge that
duty if he is a drug user. His failure to do his job can mean great loss of lives and properties.
Hence, even if he was instigated to take drugs he has no right to be reinstated to his
position. He took the drugs fully knowing that he was on duty and more so that it is
prohibited by company rules. Instigation is only a defense against criminal liability. It cannot
be used as a shield against dismissal from employment especially when the position
involves the safety of human lives.
Petitioner cannot complain he was denied procedural due process. PAL complied with the
twin-notice requirement before dismissing the petitioner. The twin-notice rule requires (1)
the notice which apprises the employee of the particular acts or omissions for which his
dismissal is being sought along with the opportunity for the employee to air his side, and (2)
the subsequent notice of the employer's decision to dismiss him. 19 Both were given by
respondent PAL.
II
Article 223 (3rd paragraph) of the Labor Code20 as amended by Section 12 of Republic Act
No. 6715,21 and Section 2 of the NLRC Interim Rules on Appeals under RA No. 6715,
Amending the Labor Code,22 provide that an order of reinstatement by the Labor Arbiter is
immediately executory even pending appeal. The rationale of the law has been explained
in Aris (Phil.) Inc. vs. NLRC:23
"In authorizing execution pending appeal of the reinstatement aspect of a decision of
the Labor Arbiter reinstating a dismissed or separated employee, the law itself has
laid down a compassionate policy which, once more, vivifies and enhances the
provisions of the 1987 Constitution on labor and the working man.
xxx

xxx

xxx

These duties and responsibilities of the State are imposed not so much to express
sympathy for the workingman as to forcefully and meaningfully underscore labor as a

primary social and economic force, which the Constitution also expressly affirms with
equal intensity. Labor is an indispensable partner for the nation's progress and
stability.
xxx

xxx

xxx

. . . In short, with respect to decisions reinstating employees, the law itself has
determined a sufficiently overwhelming reason for its execution pending appeal.
xxx

xxx

xxx

. . . Then, by and pursuant to the same power (police power), the State may
authorize an immediate implementation, pending appeal, of a decision reinstating a
dismissed or separated employee since that saving act is designed to stop, although
temporarily since the appeal may be decided in favor of the appellant, a continuing
threat or danger to the survival or even the life of the dismissed or separated
employee and his family."
The order of reinstatement is immediately executory. The unjustified refusal of the employer
to reinstate a dismissed employee entitles him to payment of his salaries effective from the
time the employer failed to reinstate him despite the issuance of a writ of
execution.24 Unless there is a restraining order issued, it is ministerial upon the Labor Arbiter
to implement the order of reinstatement. In the case at bar, no restraining order was
granted. Thus, it was mandatory on PAL to actually reinstate Roquero or reinstate him in the
payroll. Having failed to do so, PAL must pay Roquero the salary he is entitled to, as if he
was reinstated, from the time of the decision of the NLRC until the finality of the decision of
this Court.
We reiterate the rule that technicalities have no room in labor cases where the Rules of
Court are applied only in a suppletory manner and only to effectuate the objectives of the
Labor Code and not to defeat them.25 Hence, even if the order of reinstatement of the Labor
Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and
pay the wages of the dismissed employee during the period of appeal until reversal by the
higher court. On the other hand, if the employee has been reinstated during the appeal
period and such reinstatement order is reversed with finality, the employee is not required to
reimburse whatever salary he received for he is entitled to such, more so if he actually
rendered services during the period.
IN VIEW WHEREOF, the dismissal of petitioner Roquero is AFFIRMED, but respondent PAL
is ordered to pay the wages to which Roquero is entitled from the time the reinstatement
order was issued until the finality of this decision.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona and Carpio-Morales, JJ ., concur.

Footnotes
1

Rollo, pp. 2830.

Ibid.; Records, p. 40.

Records, pp. 6871, 9396.

Id., at pp. 7285, 97110.

Supra note 1.

Although both Roquero and Pabayo filed the illegal dismissal case, only Roquero
brought this petition for review because Pabayo agreed to monetarily settle with PAL
during the pendency of the case.
6

Rollo, pp. 6061.

Id. at 7577.

Id. at 80.

10

G.R. No. 130866, September 16, 1998.

11

Records, p. 234.

12

Id. at 249.

13

Id. at 275278.

14

Id. at 36.

15

Id. at 15.

16

Rollo, p. 35.

17

Austria vs. NLRC, 312 SCRA 410 (1999).

18

Philippine Aeolus Automotive United Corporation vs. NLRC, 331 SCRA 237 (2000).

Skippers Pacific, Inc., and Skippers Maritime Services, Ltd., vs. Manuel V. Vera
(deceased), substituted by Delfa F. Mira and Anne Marie F. Mira and the Court of
Appeals, G.R. No. 144314, November 21, 2002.
19

"In any event, the decision of the Labor Arbiter reinstating a dismissed or
separated employee, insofar as the reinstatement aspect is concerned, shall
immediately be executory, pending appeal. The employee shall either be admitted
20

back to work under the same terms and conditions prevailing prior to his dismissal or
separation or, at the option of the employer, merely reinstated in the payroll. The
posting of a bond by the employer shall not stay the execution for reinstatement
provided herein."
21

March 21, 1989.

"Section 2. Order of Reinstatement and Effect of Bond In so far as the

reinstatement aspect is concerned, the decision of the Labor Arbiter reinstating a
dismissed or separated employee shall immediately be executory even pending
appeal. x x x."
22

23

200 SCRA 246 (1991).

Philippine Rabbit Bus Lines, Inc. vs. NLRC, 306 SCRA 151 (1999), citing Medina
vs. Consolidated Broadcasting System, 222 SCRA 707 (1993).
24

25

Ibid.

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